SPECIAL LECTURE National Security and the Loaded Weapon Ben Wizner* TABLE OF CONTENTS I. MYTH #1: WE LIVE IN UNIQUELY DANGEROUS TIMES .............. 371 II. MYTH #2: SECURITY IS OUR PARAMOUNT NATIONAL INTEREST .................................................................................. 375 III. MYTH #3: WE SHOULD DEFER TO THE EXPERTISE OF NATIONAL SECURITY OFFICIALS ............................................... 376 IV. MYTH #4: NATIONAL SECURITY OFFICIALS WHO BREAK THE LAW DO SO IN GOOD FAITH; ADVOCATES WHO SEEK TO HOLD THEM ACCOUNTABLE DO SO IN BAD FAITH .................... 378 CONCLUSION....................................................................................... 380 I’m delighted to have been invited to participate in this symposium on “Future-Proofing Law.” My talk today — which is perhaps more of a polemic than the scholarly contributions you’ve been enjoying all morning — could be said to represent the antithesis of the conference’s “future-proofing” theme. Its title, of course, is a nod to Justice Jackson’s landmark * Copyright © 2017 Ben Wizner. Director, ACLU Speech, Privacy, and Technology Project. 369 370 University of California, Davis [Vol. 51:369 dissent in the Korematsu case, in which the Court’s majority upheld the exclusion of Japanese-Americans from designated areas on the west coast. Jackson wrote: Much is said of the danger to liberty from the Army program for deporting and detaining these citizens of Japanese extraction. But a judicial construction of the due process clause that will sustain this order is a far more subtle blow to liberty than the promulgation of the order itself. A military order, however unconstitutional, is not apt to last longer than the military emergency. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes.1 The “loaded weapon” that I want to talk about today is not any particular policy, or even any particular doctrine, but rather the broad concept of “national security.” Defining “national security” turns out to be difficult, so let me begin by making clear what I don’t mean when I use the term. I am not referring to “national defense,” which we might define as a nation’s use of military power and intelligence assets to maintain its survival. Nor am I referring to “public safety,” which we might define as the use of police powers to protect the public from crime or other non-existential or non-territorial dangers. I am referring to something much more nebulous and elusive, a kind of civic religion that has arisen in the decades since President Truman signed the National Security Act2 and has enshrined itself as the nation’s paramount and defining interest. This religion has its own priesthood in the high offices of the defense and intelligence communities, its clergy members in the halls 1 Korematsu v. United States, 323 U.S. 214, 245-46 (1944) (Jackson, J., dissenting). 2 National Security Act of 1947, Pub. L. No. 80-253, 61 Stat. 495 (codified as amended at 50 U.S.C. § 401 (2012)). 2017] National Security and the Loaded Weapon 371 of the Capitol, and its deacons and altar boys spread around think tanks and academies. And the theology of National Security is predicated on a series of foundational myths — or articles of faith — that, I will argue, are highly questionable, yet rarely questioned. These baseline assumptions are so commonly accepted that we’ve become desensitized to how truly extreme and anti-democratic they are. My hope today is to begin to re-mystify them. I will explore some of these myths in detail, and explain why I think they are so consequential. By allowing this category error to metastasize without clear boundaries, we dignify a perpetual state of constitutional exception. Collectively, these tenets diminish our democracy by fundamentally weakening critical oversight mechanisms. And in a time of genuine constitutional crisis — such as the one we may be experiencing now — they leave us with fewer tools of resistance at precisely the moment when those tools are needed most. But first I’ll turn to what I described earlier as the foundational myths of the National Security Priesthood, beginning with the most important. I. MYTH #1: WE LIVE IN UNIQUELY DANGEROUS TIMES An alternate formulation of this core tenet is that “we face an unprecedented threat.” Despite the presence of words like “unique” and “unprecedented,” this tenet would appear to be evergreen. It is exemplified by Senator Lindsey Graham’s remarkable (but also typical) statement in May of 2015: “We have never seen more threats against our nation and its citizens than we do today.”3 Let’s paraphrase: The Framers of the Constitution may have had certain ideas about the need to restrain government, but they never faced a threat like Al Qaeda, or ISIS, or cyber attacks by state or non-state actors. We saw the same kind of thinking in White House counsel Alberto Gonzales’s dismissal of the Geneva Conventions as “quaint” and “obsolete.”4 These statements, to be charitable, are absurd. Relative to population, 3 Lindsey Graham (@GrahamBlog), TWITTER (May 22, 2015, 8:03 AM), https://twitter.com/GrahamBlog/status/601765234940846081. 4 Memorandum from Alberto R. Gonzalez, White House Counsel, Exec. Office of the President, on Decision Re Application of the Geneva Convention on Prisoners of War to the Conflict with Al Qaeda and the Taliban (Jan. 25, 2002), https://nsarchive2. gwu.edu/NSAEBB/NSAEBB127/02.01.25.pdf. 372 University of California, Davis [Vol. 51:369 the casualty figures for the Revolutionary War were staggering compared to more recent conflicts. Indeed, that war represents the very definition of an existential national struggle. Moreover, the authors of the 1949 Geneva Conventions had just emerged from total war in which fifty million people, most of them civilians, had been killed.5 To call those people naïve really is the height of narcissism. Let’s engage in a brief thought exercise. What would the Framers of the Constitution, or the drafters of the Geneva Conventions, have made of a society in which only one in four million people was likely to die in terrorist attack,6 but the government nonetheless routinely frightened the public with color- coded threat alerts? Somehow I don’t think they would be impressed. A corollary of this myth is that today’s terrorists are uniquely lethal super-villains. Ordinary prisons can’t hold them, and of course they can never be released. And so we heard the nation’s top uniformed military officer warn us in 2002 that Guantanamo housed the “worst of the worst”;7 the sort of “people who would gnaw through hydraulics lines in the back of a C- 17 [transport plane] to bring it down.”8 In New York City, we saw the deeply cynical protests by local elected officials who opposed holding the trial of the alleged 9/11 perpetrators in federal court in Manhattan. The result of that effort is that more than sixteen years after the 9/11 attacks, the trial of the alleged perpetrators has not even begun9 — something that should be a source of shame for all Americans. It’s important to qualify: this view of terrorists as super-villains is not shared by everyone in the security state, and you hear very different things in private. In 2007, I was invited to a dinner with a senior military official — one who would go on to serve on the Joint Chiefs of Staff. I said to 5 See generally World War II Fast Facts, CNN (Aug. 17, 2017, 3:21 PM), http://www.cnn.com/2013/07/09/world/world-war-ii-fast-facts/index.html. 6 A study from the Cato Institute puts the exact risk at 1 in 3.6 million. Alex Nowrasteh, Terrorism and Immigration: A Risk Analysis, CATO INST. (Sept. 13, 2016), https://object.cato.org/sites/cato.org/files/pubs/pdf/pa798_2.pdf. 7 See Jackie Northam, Freed from Gitmo, Where Do Detainees Go?, NPR (July 30, 2007, 6:00 AM), http://www.npr.org/templates/story/story.php?storyId=12344597. 8 Shackled Detainees Arrive in Guantanamo, CNN (Jan. 11, 2002, 11:28 PM), http://edition.cnn.com/2002/WORLD/asiapcf/central/01/11/ret.detainee.transfer/index. html (quoting General Richard Myers). 9 See About the 9/11 War Crimes Trial, MIAMI HERALD (Oct. 16, 2017), http://www. miamiherald.com/news/nation-world/world/americas/guantanamo/article1928877.html. 2017] National Security and the Loaded Weapon 373 him at that dinner: “If you closed Guantanamo today, and offered each detainee the weapon of his choice, and dropped each off on the battlefield of his choice, they would collectively do less harm to the country than you’re doing by keeping the prison open.” His response: a high five. But the fact that this person would never acknowledge that view in public is the consequence of a perverse, upside-down politics of national security. Our prevailing political discourse rewards those who inflate the terrorist threat and marginalizes those who accurately describe it. Thus, those who proclaim that today’s Muslim terrorists represent an unprecedented threat to our way of life; that our existing laws, courts, and institutions — even our prisons — are inadequate